On September 12, 2013 a
Letter,Correspondence
was filed
involving a dispute between
Kevin Mcgonigal,
and
Baring Industries, Inc.,
Nyy Steak Manhattan, Llc,
Plaza Construction Corp.,
for Tort
in the District Court of New York County.
Preview
LAW OFFICES OF TROMELLO & FISHMAN
A CNA LITIGATION COUNSEL OFFICE*
395 NORTH SERVICE ROAD
P.O. BOX 9038, MELVILLE, NY 11747
TEMPORARY U.S. MAIL ADDRESS: C/O CNA, P.O. BOX 94743, CHICAGO, IL 60690-4743
MAIN: 631-577-2400 FAX: 631-577-2401
EMAIL CASE RELATED DOCUMENTS TO: LAWOFFICESOFMICHAELTROMELLO@CNA.COM
NIKOLAOS DIAMANTIS
DIRECT DIAL: 212-440-2318
EMAIL: NIKOLAOS.DIAMANTIS@CNA.COM
*CNA IS A REGISTERED SERVICE MARK OF CNA FINANCIAL CORPORATION.
ATTORNEYS ARE EMPLOYEES OF CONTINENTAL CASUALTY COMPANY, AN UNDERWRITING COMPANY AUTHORIZED TO
USE THE CNA SERVICE MARK
June 26, 2020
Via NYSCEF
Hon. Margaret A. Chan
Supreme Court, New York County
71 Thomas Street
New York, New York 10013
RE: McGonigal, Kevin v. NYY Steak Manhattan LLC
Our File No. 1141413662/NED
Index No. 158327/13
Dear Justice Chan:
We represent Defendant/Third-Party Defendant/Second Third-Party Plaintiff/Third
Third-Party Defendant Baring Industries Inc. (“Baring”) in this litigation. On July 19, 2019,
Baring moved for summary judgment (motion sequence 005) pursuant CPRL 3211(a)(1), 3212
and 306-b dismissing plaintiff’s complaint and all claims and cross-claims against Baring;
seeking summary judgment on Baring’s contractual indemnity claims against Second Third-
Party Defendant Day & Nite Refrigeration Corp. and Kimco Refrigeration Corp. (“DNRC”); and
dismissing the claims of Defendant/Third-Third Party Plaintiff NYY Steak Manhattan, LLC
(“NYY”) and Plaza Construction, LLC (“Plaza”). On June 25, 202, the Court issued its May 14,
2020 decision as to Baring’s summary judgment motion and the summary judgment motions of
the other parties. We respectfully advise the Court that it appears that the decretal paragraphs of
the Decision inadvertently omitted certain relief which appears to have been granted as to
Baring.
In particular, although the May 14th Decision recites on page 2 that Baring moved for
summary judgment on motion sequence 5, and lists all of the documents submitted, the decision
inadvertently does not reference that Baring had moved for summary judgment directly against
Plaintiff, and not only for summary judgment on all cross claims asserted against it. A copy of
Baring’s Notice of Motion and Affirmation in Support are annexed for your convenience. The
Decision does recite that Plaintiff moved for summary judgment (also as to BARING) and such
relief was not granted.
The “REMAINING CLAIMS” section of the Decision states : “In light of the dismissal
of the main against insofar as asserted against defendants the remaining claims are dismissed as
academic.” On the basis of this remark and the entire reasoning of the opinion, which applies
equally to Baring, we respectfully request that the Court issue an Amended Order, reflecting that
summary judgment was granted as to Baring dismissing with prejudice Plaintiff’s claims. A
copy of a Proposed Amended Order is submitted herewith, one showing the proposed additions
to the last page of the order in bold text, and the Amended Order without the bold text for the
additions to the proposed amendments.
The proposed amendments provide that it is ORDERED that BARING’s motion for
summary judgment based on Labor Law 240(1) and 241(6) is granted. This is the same relief
granted to NYY and PLAZA, who moved for identical relief.
In addition, the proposed amendments provide that it is ORDERED that BARING’s
motion for summary judgment based on Labor Law 200 and common law negligence is also
granted, as it was for NYY and PLAZA.
BARING appreciates the Court’s courtesy and attention to this matter. If the Court
requires any further action, or information, please do not hesitate to contact the undersigned.
Respectfully Submitted,
Nikolaos E. Diamantis
Encls. - Notice of Motion; Affirmation in Support of Motion for Summary Judgement; Proposed
Amended Order; and Amended Order.
Via NYSEF and e-mail to all parties
Document Filed Date
June 26, 2020
Case Filing Date
September 12, 2013
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LAW OFFICES OF TROMELLO & FISHMAN A CNA LITIGATION COUNSEL OFFICE* 395 NORTH SERVICE ROAD P.O. BOX 9038, MELVILLE, NY 11747 TEMPORARY U.S. MAIL ADDRESS: C/O CNA, P.O. BOX 94743, CHICAGO, IL 60690-4743 MAIN: 631-577-2400 FAX: 631-577-2401 EMAIL CASE RELATED DOCUMENTS TO: LAWOFFICESOFMICHAELTROMELLO@CNA.COM NIKOLAOS DIAMANTIS DIRECT DIAL: 212-440-2318 EMAIL: NIKOLAOS.DIAMANTIS@CNA.COM *CNA IS A REGISTERED SERVICE MARK OF CNA FINANCIAL CORPORATION. ATTORNEYS ARE EMPLOYEES OF CONTINENTAL CASUALTY COMPANY, AN UNDERWRITING COMPANY AUTHORIZED TO USE THE CNA SERVICE MARK June 26, 2020 Via NYSCEF Hon. Margaret A. Chan Supreme Court, New York County 71 Thomas Street New York, New York 10013 RE: McGonigal, Kevin v. NYY Steak Manhattan LLC Our File No. 1141413662/NED Index No. 158327/13 Dear Justice Chan: We represent Defendant/Third-Party Defendant/Second Third-Party Plaintiff/Third Third-Party Defendant Baring Industries Inc. (“Baring”) in this litigation. On July 19, 2019, Baring moved for summary judgment (motion sequence 005) pursuant CPRL 3211(a)(1), 3212 and 306-b dismissing plaintiff’s complaint and all claims and cross-claims against Baring; seeking summary judgment on Baring’s contractual indemnity claims against Second Third- Party Defendant Day & Nite Refrigeration Corp. and Kimco Refrigeration Corp. (“DNRC”); and dismissing the claims of Defendant/Third-Third Party Plaintiff NYY Steak Manhattan, LLC (“NYY”) and Plaza Construction, LLC (“Plaza”). On June 25, 202, the Court issued its May 14, 2020 decision as to Baring’s summary judgment motion and the summary judgment motions of the other parties. We respectfully advise the Court that it appears that the decretal paragraphs of the Decision inadvertently omitted certain relief which appears to have been granted as to Baring. In particular, although the May 14th Decision recites on page 2 that Baring moved for summary judgment on motion sequence 5, and lists all of the documents submitted, the decision inadvertently does not reference that Baring had moved for summary judgment directly against Plaintiff, and not only for summary judgment on all cross claims asserted against it. A copy of Baring’s Notice of Motion and Affirmation in Support are annexed for your convenience. The Decision does recite that Plaintiff moved for summary judgment (also as to BARING) and such relief was not granted. The “REMAINING CLAIMS” section of the Decision states : “In light of the dismissal of the main against insofar as asserted against defendants the remaining claims are dismissed as academic.” On the basis of this remark and the entire reasoning of the opinion, which applies equally to Baring, we respectfully request that the Court issue an Amended Order, reflecting that summary judgment was granted as to Baring dismissing with prejudice Plaintiff’s claims. A copy of a Proposed Amended Order is submitted herewith, one showing the proposed additions to the last page of the order in bold text, and the Amended Order without the bold text for the additions to the proposed amendments. The proposed amendments provide that it is ORDERED that BARING’s motion for summary judgment based on Labor Law 240(1) and 241(6) is granted. This is the same relief granted to NYY and PLAZA, who moved for identical relief. In addition, the proposed amendments provide that it is ORDERED that BARING’s motion for summary judgment based on Labor Law 200 and common law negligence is also granted, as it was for NYY and PLAZA. BARING appreciates the Court’s courtesy and attention to this matter. If the Court requires any further action, or information, please do not hesitate to contact the undersigned. Respectfully Submitted, Nikolaos E. Diamantis Encls. - Notice of Motion; Affirmation in Support of Motion for Summary Judgement; Proposed Amended Order; and Amended Order. Via NYSEF and e-mail to all parties